What is an H-1B visa and what are the pros and cons?

Description

Liz Profumo, Partner at D’Alessio Law Group explain the H-1B visa and the pros and cons of such an employment-based visa.

Video Transcript:

What is an H-1B visa and what are the pros and cons?

The H-1B visa is the most commonly known visa for professional workers to work in the United States. The H-1B visa is available to professionals who have a bachelors degree or what the US government consider to be the equivalent of work experience. They also have to have a job offer in their field of study or experience. The H-1B is initially issued for 3 years and is also renewable for an additional 3 years beyond that. In order to extend the H-1B visa beyond six years, the applicant has to have an immigrant visa petition or a green card application started on their behalf and the I-40 petition has to be improved in order for them to be able to continue to extend their H-1B status.

There are many pros and cons of the H-1B visa. On the pro side, many applicants that have university degrees are well qualified for this visa. Arguably the standard that the employee has to meet may not be as high, stringent or as rigorous as some of the other non-immigrant visa categories. Generally, in comparison to other visas, it may also be more cost-effective, since the employee doesn’t have to make any investment or show any particular investment level into a company in order to qualify.

Also, many H-1B candidates will eventually continue on to residency through their employer or depend on the circumstances possibly another employer in the field, it is often a path that will lead to residency.

Maybe in both the pro and the con side as well spouses of H-1B visa holders can get work authorization in the period after the six years extension. So spouse work authorization is available in limited circumstances.

Another proof the H-1B visa, it is a dual intent visa meaning the employee doesn’t have to show that they have ties to their home country, which can be daunting after studying here and working for 3 years. Obviously, the longer people are in the states the more difficult it may become to show ties to your home country so the H-1B visa does not require an employee to do that.

It may be the cons of the H-1B visa that are more well-known than the pros. On the other hand, the H-1B visa has a numerical restriction. Every year there are 65 000 H-1B visas made available to applicants who have a bachelors degree or equivalent and then there are 25 000 additional visas available for those with masters degrees. So every year, there are more than 200 000 applicants or thereabouts, so the chances of being selected are statistically not in the applicant’s favor.

Also, if you are one of the lucky ones who got selected in the H-1B lottery you still have to wait until October 1st to start working. Applications are submitted every year on April 1st and the lottery is conducted usually sometime within the first 4-6 weeks. Only after your application is selected in the lottery is it going to be adjudicated and once it is approved, then you start working October 1st. There still a little bit of a process even if you’re lucky to get chosen in the lottery.

When you apply for an H-1B visa they do not take into consideration whether your company is a startup or whether it has been established for a hundred years. We know that startups are often raising funding and may not be as well funded as established companies. Unfortunately for the H-1B, you are required to pay the same prevailing wage that an established company would pay an employee for that position. It is also important to keep in mind that the salary requirement must be offered in a traditional format. A stock option cannot be considered as a compensation towards the H-1B salary requirement. Finally, the H-1B can only be issued for 6 years unless the employee has an employer who sponsors them for permanent residency. If they are not able to find an employer who is going to sponsor them for the green card then unfortunately after six years they have to find another visa that they qualify for or plan to depart the country.

Another drawback of the H-1B visa is because of the numerical limitation on the visa it makes it difficult for employees to plan appropriately for who they are going to have to work on October 1st. Some employers are unconformable with this x-factor in planning their staffing needs for any given year.

We actually have a recent development with the H-1B visas. President Trump has signed an executive order requiring several government agencies to make recommendations on how to revamp the H-1B visa program. He is also committed to enhancing security and site visits as well as additional screening in US embassies surrounding H-1B visas. This is only going to make things more difficult and burdensome for both employers and H-1B employees going forward.